Anderson v. State, F-76-574

Decision Date22 November 1976
Docket NumberNo. F-76-574,F-76-574
Citation556 P.2d 1006
PartiesRobert ANDERSON, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Judge.

Appellant, Robert Anderson, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pittsburg County, Case No. F--75--160, for the offense of Injury to a Public Building, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 349. His punishment was assessed at a term of ten (10) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State's only witness was Mr. John McDaniels, who testified that during the month of February, 1975, he was employed as a guard at Oklahoma State Penitentiary, McAlester, Oklahoma. On February 16, 1975, he was a guard on duty in the maximum security portion of O.S.P. He then identified the defendant in this case, Robert Anderson, as being an inmate of the penitentiary and at that time confined in the maximum security unit. At approximately 6:00 p.m. on the above date, the defendant's cellmate reported sick and was subsequently taken from the cell. The defendant, who had been assigned to work in the run, was subsequently placed in his cell at approximately 8:30 p.m. After being placed in this cell, the guards heard a noise that sounded as if lavatories and toilets were being torn from the wall. A search of the defendant's cell revealed that the lavatory had been wrenched from its location. The witness then testified that said property was the property of the State of Oklahoma and was located in Pittsburg County, Oklahoma. The guard also testified that the defendant was the sole occupant of the cell during the time the lavatories and toilets were torn from the walls.

Thereafter, the State rested.

The defendant called as his first witness, Kenneth Goodson, who testified that he was an inmate in the maximum security section of the Oklahoma State Penitentiary on February 16, 1975. He further testified that his cell on that evening was in close proximity to that of the defendant. A disturbance occurred that same evening and the defendant took the lavatory from the wall of his cell and tossed it on the floor, but did not damage the same nor did he damage the toilet.

The defendant then took the stand and admitted that he took the sink off the wall of his cell and tossed it to the floor and characterized it as a gesture due to frustration, but denied that this in any way damaged any of the State's property.

The defense then rested and the State recalled Guard McDaniels in rebuttal. At this time McDaniels related that he observed that both the sink and the toilet were laying on the floor upon his return to the cell and that he could see broken parts of the sink laying about the cell floor.

As his first assignment of error, he contends that the trial court erred in refusing to sustain his motion to dismiss the charge by reason of a denial of his constitutional right to a speedy trial. The record presented to this Court reveals that the defendant was charged on the 10th day of July, 1975, by Information for the offense of 'Injuring a Public Building, After Former Conviction of a Felony' which allegedly occurred on the 16th day of February, 1975. The defendant specifically argues that this delay, amounting to some five months, was a denial of his right to a speedy trial. In support of his argument, the defendant cites numerous cases decided by both this Court and the Federal Courts relating to the right to a speedy trial and due process. However, in most of these cases there is a single distinguishing fact, i.e., in the cases cited the defendants had been formally charged and/or arrested, but had not been taken before a Magistrate, nor had their cases been tried on the merits. In the instant case there was some five months delay between the date of the offense and the filing of the formal charge. However, once the charge was filed the proceedings moved without delay. In Bauhaus v. State, Okl.Cr., 532 P.2d 434 (1975), we cited Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), wherein it was stated:

"The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors . . .. Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. . . ."

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7 cases
  • McFatridge v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 30, 1981
    ...can only be made on an individual basis in which conduct of the prosecution and the defendant are weighed and balanced. Anderson v. State, 556 P.2d 1006 (Okl.Cr.1976); Jones v. State, 595 P.2d 1344 To refute the appellant's contentions the State responds by citing U. S. v. Marion, 404 U.S. ......
  • Jones v. State, F-78-175
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 23, 1979
    ...held that these factors are not absolute but must be balanced together with other circumstances as may be relevant. See Anderson v. State, Okl.Cr., 556 P.2d 1006 (1976). We will consider the length of delay and the reason for the delay together, inasmuch as they are closely interwoven. Defe......
  • State v. Duke, 0-76-975
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 18, 1977
    ...v. State, Okl.Cr., 532 P.2d 434 (1975). This Court recently confronted a situation similar to the instant case in Anderson v. State, Okl.Cr., 556 P.2d 1006 (1976), in which there was a pre-accusation delay of approximately five months. In that case we noted first that it was a case of pre-a......
  • Owens v. State, F-78-139
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • December 21, 1978
    ...that the test is applicable to alleged due process violations based on preaccusation delay. See State v. Duke, Supra; Anderson v. State, Okl.Cr., 556 P.2d 1006 (1977). The length of delay in the present case was approximately ten and one-half months. In Barker v. Wingo, supra, the United St......
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